Exhibit 10.2
FIRST AMENDMENT dated as of September 17, 2002 (this
"AMENDMENT"), to the FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT dated as of March 2, 2001 (the "CREDIT
AGREEMENT"), among PERKINELMER, INC., a Massachusetts corporation
(the "COMPANY"), the Borrowing Subsidiaries (as such term is
defined in the Credit Agreement, and, together with the Company,
the "BORROWERS"), the lenders party thereto from time to time
(the "LENDERS") and JPMORGAN CHASE BANK (as successor to THE
CHASE MANHATTAN BANK), a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT").
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
extend credit to the Borrowers on the terms and subject to the conditions set
forth therein; and
WHEREAS, the Company has requested that the Lenders amend certain
provisions of the Credit Agreement as set forth in this Amendment and the
Lenders whose signatures appear below, constituting at least the Required
Lenders, are willing to amend the Credit Agreement on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used but not defined
herein have the meanings assigned to them in the Credit Agreement as amended
hereby.
SECTION 2. AMENDMENT OF SECTION 1.01 OF THE CREDIT AGREEMENT. Section
1.01 of the Credit Agreement is hereby amended by deleting the definition of
"Applicable Percentage" set forth therein in its entirety and substituting in
lieu thereof the following definition:
"`APPLICABLE PERCENTAGE' shall mean on any date, with respect to
Eurocurrency Standby Loans or with respect to the Facility Fee, as the case
may be, the applicable percentage set forth below under the caption
"Eurocurrency Spread" or "Facility Fee Percentage", as the case may be,
based upon the Ratings in effect on such date.
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Rating Eurocurrency Spread Facility Fee Percentage
------ ------------------- -----------------------
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CATEGORY 1
Aa3 or higher by Xxxxx'x; .380% .070%
AA- or higher by S&P
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2
================================================================================
Rating Eurocurrency Spread Facility Fee Percentage
------ ------------------- -----------------------
--------------------------------------------------------------------------------
Category 2
A1 or A2 by Xxxxx'x; .450% .100%
A+ or A by S&P
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CATEGORY 3
A3 by Xxxxx'x; .525% .125%
A- by S&P
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CATEGORY 4
Baa1 by Xxxxx'x; .600% .150%
BBB+ by S&P
--------------------------------------------------------------------------------
CATEGORY 5
Baa2 by Xxxxx'x; .825% .175%
BBB by S&P
--------------------------------------------------------------------------------
CATEGORY 6
Baa3 by Xxxxx'x; 1.025% .225%
BBB- by S&P
--------------------------------------------------------------------------------
CATEGORY 7
Ba1 by Xxxxx'x; 1.200% .300%
BB+ by S&P
--------------------------------------------------------------------------------
CATEGORY 8
Less than Ba1 by Xxxxx'x; 1.500% .500%
Less than BB+ by S&P
================================================================================
For purposes of the foregoing, (i) if either rating agency shall not have a
Rating in effect (other than as a result of circumstances referred to in the
penultimate sentence of this definition), such rating agency shall be deemed to
have a Rating in Category 8; (ii) if the Ratings shall fall or be deemed to fall
within different Categories, the Applicable Percentage shall be based upon the
higher of the two Categories; PROVIDED, HOWEVER, that if the difference in the
Ratings is greater than one Category, the Applicable Percentage will be based on
the Category which is one Category below the higher Rating; and (iii) if any
Rating shall be changed (other than as a result of a change in the rating system
of Xxxxx'x or S&P), such change shall be effective as of the date on which it is
first announced by the rating agency making such change. Each such change in the
Applicable Percentage shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Xxxxx'x or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the
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parties hereto shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency, and pending the
effectiveness of any such amendment the Applicable Percentage shall be
determined by reference to the rating most recently in effect prior to such
change or cessation. Notwithstanding the foregoing, each Applicable Percentage
set forth above under the caption "Eurocurrency Spread" shall be increased (x)
by (i) unless clause (ii) below shall apply, .125% per annum on any day on which
(A) the sum of the Revolving Credit Exposure and the aggregate Competitive Loan
Exposures shall exceed (B) 33% of the Total Commitment or (ii) .25% per annum on
any day on which (A) (1) the sum of the Revolving Credit Exposure and the
aggregate Competitive Loan Exposures shall exceed (2) 33% of the Total
Commitment and (B) the Company's senior, unsecured, non-credit enhanced,
long-term indebtedness shall be rated below Baa2 by Xxxxx'x or below BBB by S&P
or shall not be rated by either such rating agency and (y) by an additional .25%
per annum in the event that the ratio of (A) consolidated Indebtedness of the
Company to (B) Consolidated EBITDA at the end of the most recent period of four
consecutive fiscal quarters shall have been greater than or equal to 3.00 to
1.00."
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Consolidated EBITDA" set forth therein in its entirety and
substituting in lieu thereof the following definition:
"`CONSOLIDATED EBITDA' shall mean, (i) for any period prior to and
including the fiscal quarter ended on June 30, 2002 and for purposes of all
calculations of Consolidated EBITDA including such periods, the amount set
forth as "EBITDA-adjusted with Fluid Science" with respect to such period
on Schedule 1.01, and (ii) for any period subsequent to the fiscal quarter
ended on June 30, 2002, Consolidated Net Income of the Company and its
Consolidated Subsidiaries for such period (excluding (A) gains and losses
on sales of assets (other than inventory sold in the ordinary course of
business) during such period, (B) the effect of non-cash extraordinary
items and accounting changes for such period, (C) non-cash restructuring
charges for such period and (D) solely for periods prior to and including
the fiscal quarter ending March 31, 2003 and for purposes of all
calculations of Consolidated EBITDA including such periods, cash
restructuring charges during such period in an aggregate amount not to
exceed $50,000,000; PROVIDED, HOWEVER, that cash paid by the Company with
respect to such cash restructuring charges shall not exceed $25,000,000 in
any fiscal quarter), plus income taxes during such period, plus the
aggregate amount deducted in determining such Consolidated Net Income for
such period in respect of Consolidated Interest Expense of the Company and
its Consolidated Subsidiaries for such period, plus all amounts
attributable to depreciation and amortization of the Company and its
Consolidated Subsidiaries for such period; PROVIDED, HOWEVER, that solely
for the purposes of calculating the financial ratios set forth in Sections
5.06, 5.07 and 5.11, for any fiscal quarter in which the sale of the Fluid
Sciences business is consummated, (A) the sale of the Fluid Sciences
business shall be deemed to have been consummated on the first day of such
fiscal quarter and (B) the consolidated EBITDA of the Fluid Sciences
business shall be excluded from the calculation of Consolidated EBITDA for
such fiscal quarter and the three fiscal quarters immediately preceding
such fiscal quarter."
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(c) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Consolidated Interest Expense"set forth therein in its
entirety and substituting in lieu thereof the following definition:
"`CONSOLIDATED INTEREST EXPENSE' shall mean, for any period, the gross
interest expense of the Company and its Consolidated Subsidiaries
(excluding the amortization of transaction costs) in respect of
Indebtedness included within clauses (i) through (iv) and (viii) through
(xii) of the definition of Indebtedness for such period, all determined in
accordance with GAAP; PROVIDED, HOWEVER, that solely for the purpose of
calculating the financial ratio set forth in Section 5.06, for any fiscal
quarter in which the sale of the Fluid Sciences business is consummated,
25% of the gross interest expense of the Company and its Consolidated
Subsidiaries shall be excluded from the calculation of Consolidated
Interest Expense for all of such fiscal quarter and the three fiscal
quarters immediately preceding such fiscal quarter."
(d) The definition of "Indebtedness" in Section 1.01 of the Credit
Agreement is hereby amended by deleting the words "and (vi) all Indebtedness of
others guaranteed by such person" and substituting in lieu thereof the
following:
"(vi) all Guarantees by such person of Indebtedness of others, PROVIDED,
that the amount of any such Guarantee at any time shall be deemed to be an
amount equal to the maximum amount for which such person may be liable
pursuant to the terms of the instrument embodying such Guarantee, (vii) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty other than letters of
credit or letters of guarantee obtained in the ordinary course of business
to support trade payables and in any event not securing Indebtedness,
(viii) all obligations of such person in respect of Hedging Agreements,
(ix) all obligations, contingent or otherwise, of such person in respect of
bankers' acceptances, (x) all Securitization Transactions of such person,
(xi) all Attributable Debt of such person and (xii) all Synthetic Lease
Obligations of such person. The Indebtedness of any person shall include
the Indebtedness of any other entity (including any partnership in which
such person is a general partner) to the extent such person is liable
therefor as a result of such person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such person is not liable therefor; PROVIDED,
HOWEVER, that, solely for purposes of calculating the financial ratios
referred to in Sections 2.08(e)(ii), 5.06, 5.07 and 5.11, Indebtedness
shall not include (A) obligations in respect of Hedging Agreements and (B)
obligations with respect to operating leases in respect of up to
$65,000,000 of Sale-Leaseback Transactions existing as of the Amendment
Date."
(e) Section 1.01 of the Credit Agreement is hereby amended by
inserting the following definitions in the correct alphabetical order:
"`AMENDMENT DATE' shall mean September 17, 2002.
`ATTRIBUTABLE DEBT' shall mean, with respect to any Sale-Leaseback
Transaction, the present value (discounted at the rate set forth or
implicit in the terms of the lease included in such Sale-Leaseback
Transaction, compounded semiannually) of the total obligations of the
lessee for rental payments (other than
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(a) amounts required to be paid on account of taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and (b) other
items which do not constitute payments for property rights or amounts
related to contingent rents (such as those based on sales)) during the
remaining term of the lease included in such Sale-Leaseback Transaction
(including any period for which such lease has been extended). In the case
of any lease which is terminable by the lessee upon payment of a penalty,
the Attributable Debt shall be the lesser of the Attributable Debt
determined assuming termination upon the first date such lease may be
terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated) or the Attributable Debt determined assuming no such
termination.
`CAPITAL LEASE OBLIGATIONS' of any person means the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
`GUARANTEE' of or by any person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation; PROVIDED, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course
of business.
`HEDGING AGREEMENT' shall mean any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement. The "principal amount" of the obligations of the Company or
any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Company or such Subsidiary would be required to pay to the counterparty
thereunder in accordance with the terms of such Hedging Agreement if such
Hedging Agreement were terminated at such time.
`OBLIGATIONS' shall mean (a) the due and punctual payment by the
Borrowers of (i) the principal of and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other
similar
6
proceeding, regardless of whether allowed or allowable in such proceeding)
on the Loans, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise and (ii) all other
monetary obligations of the Borrowers under the Credit Agreement, including
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) and (b) the due and punctual performance of all other
obligations of the Borrowers under or pursuant to the Credit Agreement.
`SALE-LEASEBACK TRANSACTION' means any arrangement whereby the Company
or a Subsidiary shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property.
`SECURITIZATION TRANSACTION' means any transfer by the Company or any
Subsidiary of accounts receivable or interests therein (a) to a trust,
partnership, corporation or other entity, which transfer is funded in whole
or in part, directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of Indebtedness or other securities
that are to receive payments from, or that represent interests in, the cash
flow derived from such accounts receivable or interests, or (b) directly to
one or more investors or other purchasers. The amount of any Securitization
Transaction shall be deemed at any time to be the aggregate principal or
stated amount of the Indebtedness or other securities referred to in the
preceding sentence or, if there shall be no such principal or stated
amount, the purchase price paid by the ultimate transferee or transferees
of the accounts receivable transferred pursuant to such Securitization
Transaction net of collections reducing the investment of such transferee
or transferees in such accounts receivable.
`SYNTHETIC LEASE' shall mean a lease of property or assets designed to
permit the lessee (i) to claim depreciation on such property or assets
under U. S. tax law and (ii) to treat such lease as an operating lease or
not to reflect the leased property or assets on the lessee's balance sheet
under GAAP.
`SYNTHETIC LEASE OBLIGATIONS' shall mean, with respect to any
Synthetic Lease at any time, an amount equal to the higher of (x) the
aggregate termination value or purchase price or similar payments in the
nature of principal payable thereunder and (y) the then aggregate
outstanding principal amount of the notes or other instruments issued by,
and the amount of the equity investment, if any, in the lessor under such
Synthetic Lease."
SECTION 3. AMENDMENT OF SECTION 3.05 OF THE CREDIT AGREEMENT. Section
3.05 of the Credit Agreement is hereby amended by deleting the word "There" in
the first line and substituting in lieu therefor the following:
"Other than as set forth on Schedule 3.05 attached hereto, there".
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SECTION 4. AMENDMENT OF ARTICLE V OF THE CREDIT AGREEMENT.
(a) AMENDMENT OF SECTION 5.01. Section 5.01(c) of the Credit Agreement
is hereby amended by deleting the words "Sections 5.06 and 5.07 " and
substituting in lieu therefor the following:
"Sections 5.06, 5.07 and 5.11,".
(b) AMENDMENT OF SECTION 5.01. Section 5.01(c) of the Credit Agreement
is hereby amended by (i) deleting the word "and" immediately preceding clause
(ii) and substituting in lieu therefor a comma and (ii) inserting immediately
after the word "thereto" in the seventh line the following:
", and, as applicable, (iii) stating that the amount of cash paid by the
Company in such fiscal quarter with respect to the cash restructuring
charges set forth in the definition of Consolidated EBITDA does not exceed
an aggregate amount of $25,000,000".
(c) AMENDMENT OF SECTION 5.08. Section 5.08 of the Credit Agreement is
hereby amended by deleting in its entirety clause (b) and substituting therefor
the following:
"(b) (i) Liens existing on the Amendment Date (which Liens shall
secure only those obligations which they secure on the Amendment Date and,
in the case of the Company's Receivables Sale Agreement dated December 21,
2001 only, additional obligations incurred thereunder after the Amendment
Date so long as the aggregate amount of all obligations thereunder shall
not exceed $51,000,000 at any time) and, to the extent that the
Indebtedness in respect of any such Liens is extended, renewed or replaced,
Liens securing solely the Indebtedness in respect of such extension,
renewal or replacement; PROVIDED that in each case such Liens shall apply
only to the property and assets to which they apply on the Amendment Date
(and no other property or assets) and (ii) any Lien on fixed or capital
assets acquired, constructed or improved by the Company or any Subsidiary
(and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof) securing obligations in an aggregate
amount not exceeding $35,000,000 incurred during any fiscal year; PROVIDED
that (x) such Lien and the Indebtedness secured thereby are incurred prior
to or within 180 days after such acquisition or the completion of such
construction or improvement, (y) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (z) such Lien shall not apply to any other property or
assets of the Company or any Subsidiary;"
(d) AMENDMENT OF ARTICLE V. Article V of the Credit Agreement is
hereby amended by adding the following Sections at the end thereof:
"SECTION 5.11. CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED EBITDA
RATIO. The Company will not permit the ratio of (a) consolidated
Indebtedness of the Company and the Subsidiaries at any date to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters
ended at or most
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recently prior to such date to be greater than the ratio set forth below
opposite the period during which such date occurs:
Period Ratio
------ -----
Through 9/30/02 4.00:1.00
10/1/02 through 12/31/02 4.50:1.00
1/1/03 through 3/31/03 4.30:1.00
4/1/03 through 6/30/03 3.80:1.00
7/1/03 through 9/30/03 3.55:1.00
10/1/03 through 12/31/03 3.25:1.00
and thereafter
SECTION 5.12. CERTAIN NEGATIVE PLEDGES. Neither the Company nor
any Subsidiary will enter into any agreement that would (a) limit its
ability to create Liens on its assets to secure the Obligations or the
"Obligations" under and as defined in the 364-Day Facility or (b) require
the sharing of the benefit of any Liens referred to in the preceding clause
(a) with the holders of any other obligations of the Company or any
Subsidiary; PROVIDED, HOWEVER, that this Section 5.12 will not prohibit the
Company or any Subsidiary from entering into (i) agreements with respect to
purchase money financing, Capital Lease Obligations and Sale-Leaseback
Transactions which prohibit the creation of Liens with respect to the
assets that are the subject of such agreements, (ii) agreements which
refinance secured Indebtedness existing as of the Amendment Date that
prohibit the creation of Liens with respect to the assets securing such
Indebtedness; PROVIDED, that such refinancings do not provide for the
granting of security in any collateral not securing the Indebtedness so
refinanced; and PROVIDED, FURTHER, that the principal amount of such
Indebtedness is not increased and (iii) an amendment to the Master Lease
Agreement and Deed of Trust dated as of December 28, 2000, between
PerkinElmer Business Trust No. 2000-1 and PerkinElmer Optoelectronics, NC,
Inc. (the "Master Lease") pursuant to which the lenders thereunder would be
allowed, on terms reasonably satisfactory to the Administrative Agent, to
share in the benefit of any Liens referred to in the preceding clause (a)
to the extent that the assets secured pursuant to the Master Lease are not
adequate to satisfy obligations owed under the Master Lease.
SECTION 5.13. FURTHER ASSURANCES. Notwithstanding any other
provision contained herein, in the event the Company or any Subsidiary
shall be party to, enter into or amend any agreement or instrument
evidencing or related to any Indebtedness (including, without limitation,
the Master Lease) and such agreement or instrument (as so amended, if
applicable) shall contain any affirmative or negative covenant, event of
default or similar provision that is more restrictive than the analogous
provision in this Agreement or for which there is no analogous provision in
this Agreement (including, without limitation, the granting of any Lien
permitted under Section 5.08 to secure "Obligations" under and as defined
in the Master Lease (other than any Liens granted with respect thereto
existing on the Amendment Date)), then this Agreement shall be deemed to
have
9
been amended to incorporate such affirmative or negative covenant, event of
default or similar provision for so long as such affirmative or negative
covenant, event of default or similar provision shall continue to be
applicable pursuant to such other agreement or instrument. The Company (a)
represents that it has provided the Administrative Agent with complete and
accurate copies of each such agreement or instrument existing on the
Amendment Date and containing any such covenant, event of default or
similar provision, and (b) covenants and agrees that it will (i) provide
the Administrative Agent with complete and accurate copies of each such
agreement or instrument, and of each amendment, modification and waiver,
entered into after the Amendment Date, promptly after the execution
thereof, and (ii) execute any and all further documents and agreements,
including amendments hereto, and take all such further actions necessary or
reasonably requested by the Administrative Agent to give effect to this
Section 5.13.
SECTION 5.14 AMENDMENT OF THE MASTER LEASE. The Company may amend
the terms of the Master Lease to allow for an acceleration of the final
maturity date thereunder; PROVIDED, HOWEVER, that in any event the Company
will not permit the obligations under the Master Lease to mature any
earlier than the earlier of (x) February 28, 2003 and (y) the date of the
consummation of the sale of the Fluid Sciences business."
SECTION 5. AMENDMENT OF ARTICLE VI OF THE CREDIT AGREEMENT.
Article VI of the Credit Agreement is hereby amended by deleting the words
"Section 5.02 or 5.06 through 5.09;" at the end of clause (d) thereof, and
substituting therefor the following:
"Sections 5.02, 5.06 through 5.09 or 5.11 through 5.13;"
SECTION 6. SCHEDULES. (a) Schedules 2.01 and 3.08 to the Credit
Agreement are hereby deleted and Schedules 2.01 and 3.08 hereto are
substituted in lieu thereof, and (b) Schedule 3.05 hereto is hereby added
to the Credit Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES. To induce the other
parties hereto to enter into this Amendment, each of the Borrowers
represents and warrants to each other party hereto that, after giving
effect to this Amendment:
(a) The representations and warranties set forth in Article III
of the Credit Agreement, as amended by this Amendment, are true and
correct on and as of the date of this Amendment (other than
representations or warranties expressly made only on and as of an
earlier date, in which case such representations and warranties are
true and correct in all material respects as of such earlier date);
and
(b) No Default or Event of Default has occurred and is
continuing.
SECTION 8. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective on the date on which (i) the Administrative Agent shall
have received counterparts of this Amendment that, when taken together,
bear the signatures of each of the Borrowers and the Required Lenders and
(ii) the Administrative Agent shall have received the amendment fees
separately agreed upon (the date on which such conditions have been
satisfied being called the "AMENDMENT EFFECTIVE DATE").
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SECTION 9. EFFECT OF AMENDMENT. On and after the Amendment
Effective Date, each reference in the Credit Agreement to "this Agreement",
"hereunder", "herein", or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of or otherwise affect the rights and
remedies of the Lenders under the Credit Agreement or any document executed
in connection therewith, and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any document executed in connection
therewith, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to
entitle any of the Borrowers to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any document
executed in connection therewith in similar or different circumstances.
This Amendment shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to herein.
SECTION 10. COUNTERPARTS. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original, but all
of which when taken together shall constitute but one contract. Delivery of
an executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 11. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 12. HEADINGS. Section headings used herein are for
convenience of reference only, are not part of, and are not to be taken
into consideration in interpreting, this Amendment.
SECTION 13. EXPENSES. The Company agrees to pay the reasonable
out of pocket expenses incurred by the Administrative Agent in connection
with the preparation of this Amendment, including the reasonable fees,
disbursements and other charges of its counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
PERKINELMER, INC.,
By
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
By
-------------------------------------
Name:
Title:
X.X. XXXXXX EUROPE LIMITED, individually
and as London Agent,
By
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO THE FIRST AMENDMENT
DATED AS OF SEPTEMBER 17, 2002, TO THE
PERKINELMER, INC. FIVE-YEAR COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT DATED AS OF MARCH 1, 2002
To Approve the Amendment
Name of Institution:
--------------------------------
By
---------------------------
Name:
Title:
